Epic Fail: How the photographers won, while digital rights failed

How did the music business end up with a triumph with the new Digital Economy Act? How did photographers, whose resources were one laptop and some old fashioned persuasion, carry an unlikely and famous victory? How did the digital rights campaigners fail so badly?

Back in January, a senior music business figure explained to me that Clause 17, which gave open-ended powers to the Secretary of State, was unlikely to survive the wash-up. But he didn't much care; the other sections which compelled the ISPs to take action against infringers were good enough. Anything else was a bonus - possibly even a distraction. Yet to the amazement of the music business, web blocking is now legislation.

I think this is a watershed in internet campaigning. It's not just a tactical defeat, it's a full-on charge of the light brigade, and the biggest defeat for internet freedom in the UK since it opened for business. I've spent time talking to legislators and protagonists, and concluded that it was avoidable. Much of the argument was already lost when the Bill was introduced last November, admittedly, but campaigners' tactics made a bad situation worse. This explodes the idea - sometimes called the 'Overton Window' in the jargon - that by adopting an extreme position, you pull the centre ground your way. The digital rights campaigners forced waverers into the music business camp, and hardened their support for tougher measures against file sharers.

In the end, the BPI wiped the floor with the Open Rights Group.

Let's compare the digital rights failure with the amazing success of the Stop43 campaign - what resources did each have to hand?

The Open Rights Group had 4.5 full time staff, the industrial might of the ISPs, a major quango backing them up in the shape of Consumer Focus, and a sympathetic media happy to let false statements (eg, "disconnections") go unchallenged. And it enlisted the support of 38 Degrees. By contrast, Paul Ellis from the photographers' Stop43 campaign tells me his resources were:

A standard hosting account, provided by EPUK

My MacBook Pro with a copy of RapidWeaver

Nearly a month's unpaid full-time voluntary work from a handful of people - it's back to paying the bills, now

The generosity of those photographers and retouchers who made their copyright work and skills available to us to produce the "virals"

The pent-up energy and frustration of thousands of photographers who previously had lacked a specific focus - Stop43 gave them the arguments to use and the tools with which to use them

Clearly the failure has something to do with the contents of the digital rights message as well as the tactics. I've tried to highlight a few issues below.

1. Failure to build common alliances

Successful political operators find a division in the enemy and exploit it. It's clear that there were subtle but important differences between the BPI and UK Music, the umbrella organisation that includes the BPI. That reflects historical antagonisms: publishers versus record labels, majors versus indies - this is a business that has traditionally been at war with itself. In addition, many producers accept its position is its own fault: the business failed to innovate new ideas that take advantage of the technology. See Martin Mills summary here: Luddite and paranoid - why the big record labels failed at digital.

The ORG failed to see this, let alone use it to advantage. Several parts of the music business were looking for common ground, most specifically the Featured Artists Coalition, which was expected to come out against the technical countermeasures. But they were spurned.

To the campaigners, everyone was equally evil. If they were dealing with the music business, they were supping with the Devil. Safest not try, then.

2. Failure to play the Trump Card

The strongest argument against the file sharing legislation is that it isn't needed - or at least not yet. Market failure is usually the reason for regulatory intervention: the market should be given a go first. The activists could have argued that if the music business isn't even prepared to offer services such as legal P2P, it's simply being incompetent or lazy (or both), and can't reasonably claim it's tried everything it could. File sharing remains "illegal" because the suppliers refuse to give licenses.

Incredibly, campaigners never made this case. It would have required activists to be pro-business, even pro-copyright, and demand 'where's our legal P2P'? That's certainly something most supporters would prefer to technical counter-measures and tribunals. But it wasn't something the leadership were prepared to argue - even as a means to an end.

3. Rights Arguments have a fatal flaw

"Rights" are a strange thing to bring to a consumer argument. You don't hear of rights groups for door handles or text messaging, for example. If you're going to politicise a consumer issue and turn it into a "rights" issue, then there are a few simple rules to avoid failure.

There's an implicit understanding that when it comes to "rights" - people respect each others. Legislators I spoke to weren't convinced the ORG and the Pirates were ever going to respect the creators' rights, especially since so many explicitly said these protections no longer applied to online copies. Rights arguments traditionally invite the opposition to assert their rights even more strongly, and the BPI had this one in the bag before the Bill was published.

So activists found themselves storming the barricades arguing obscure technical points such as the cost of putting passwords on Wi-Fi routers. The trump card that could have been played (2, above) was never deployed. The photographers, by contrast, were arguing for their livelihoods.

In a battle between creation of original material, and the right to access material illegally, who would you expect to win?

4. What was the goal?

Was the goal, for example, bringing the joy of file sharing to the masses without risk of prosecution? That's a laudable consumer goal, and a pro-technology one. P2P file sharing is just the start: we should be able to stream and share files from mobile devices too.

Or were some activists conducting a deeper, ideological war - perhaps one against copyright? Was it all a "consciousness raising" exercise? In the end, it was the Taliban element of the ORG that prevailed over strategy, and legislators sided with the music industry. If it's the case that the activists were ideologically motivated, then perhaps the leadership's wiggle-room was limited. If you make compromises, you risk seeing supporters defect to the more ideologically-pure Pirate Party.

One photographer active in Stop43 had a very telling comment, I thought.

"Whenever we objected to a clause, we gave lawmakers something else to work with," he told me. Few legislators are domain experts, but they want to do the right thing, and don't want to be embarrassed and look daft. The online activists didn't help them in the way Stop43 did - they filled their inboxes with angry emails instead.

5. You can't always choose your friends

The problem with volunteer political groups is that you can't pick and choose your volunteers. People invite themselves along for the ride, and the quality of this talent is variable. Some of the human resources and knowledge available to the ORG are excellent: Richard Clayton's technical analysis for example, and William Heath knows the contours of government as well as any outsider.

But for legal advice, it was a different picture. ORG found its legal case led by oddball solo barrister Francis Davey, whose area of expertise is, er... housing (he's the co-author of The Housing Act 2004 and Residential Lettings: A Practical Guide). And it's hard to imagine sci-fi convention organiser Lilian Edwards being put forward by any other group than the ORG.

One asset the ORG failed to use was former chief Becky Hogge, who in her time as chief spokesperson enjoyed good access to the BBC. Becky had a huge advantage: she didn't sound angry or persecuted. By contrast, former Green Party staffer Jim Killock draws attention to the ORG's Dave Spart contingent - and always manages to sound like a student.

6. Vanity politics: when losing is winning after all.

One possible explanation for the BPI's triumph, is that the ORG activists didn't really want to win. It's in the group's interests to keep the fight alive. For some campaigners, activism is a career choice - and so there's more to be gained by being a copyfighter than a copyfight winner. You may see this as very cynical - but it's a fact that some political conflicts go on for so much longer than they need to because of the entrenchment of a few ideological outposts. When this is the case, you need to lose quite often, and token gestures become worth more than results. ORG chief Jim Killock boasted how donations increased and the group had twice as many full time staff.

Good for ORG, no doubt - but good for us?

There's little point in retreating entirely from the political battle to mutter about conspiracy theories involving big business and yachts and secret lunches. This insults the intelligence, suggesting that no rational persuasion will ever work, and it's all a fix. There was no fix. And the photographers will remind us that the powerful interests that they were up against included an alliance of News International and the BBC. That's much bigger than the record industry. And they won.

We may well ask what "digital rights" means now - is this a pro-technology or anti-copyright movement? What does it stand for? I see it as something quite interesting.

When public choice theory caught on in the mid-70s (it was to carry all before it in the 1980s), it challenged established ideas of democracy and representation and public service with the market. But the technology utopians don't even believe in the market. ®